Criminal Law (Defence and the Dwelling) Bill 2010: Second Stage (Resumed)

Thursday, 21 October 2010

Dáil Éireann Debate
Vol. 719 No. 3

Page of 162

Question again proposed: “That the Bill be now read a Second Time.”

An Ceann Comhairle:Deputy Deenihan is in possession and has 14 minutes remaining.

Deputy Jimmy Deenihan:Last night I welcomed the Bill. It has been sought for some time by my party in particular. The Bill addresses two important matters of public concern, a concern that has been expressed in the media by a number of commentators not only in this jurisdiction, but also in the United Kingdom. Those concerns are the perceived injustice of occupiers being sued by burglars and the extent of force an occupier can use to defend their property. They are the core issues in the Bill. It has come about because of this perceived injustice. Following each high profile case, there was a response in the House to bring forward appropriate legislation to clarify the law in this regard.

The most celebrated case was that of Tony Martin in England. A burglar attempted to sue him having been injured on his property and this generated significant media comment in both the UK and Ireland. Tony Martin shot dead a 16-year old burglar and wounded his accomplice, who subsequently attempted to sue for the injuries sustained. He was convicted of manslaughter, though the bid to sue him was rejected in court. This high profile case challenged the Government and the Opposition.

Apart from the civil liability issue, considerable legal debate has taken place in recent years about whether, and to what extent, members of the public could resort to force to protect their property from trespassers. The issue came to public prominence in Ireland in 2006 whenPádraig Nally was convicted of the manslaughter of a man he suspected was attempting to rob his farm. The conviction was subsequently quashed and he was found not guilty following a retrial. Both these high profile cases put pressure on the Legislature to act and this legislation is the final part of the reaction, which I welcome.

Fine Gael made two attempts to introduce legislation in the Dáil, which would have helped to clarify this grey area but, like most Private Members’ Bills, it was rejected. The Progressive Democrats Party in an attempt to compete with us on law and order issues introduced a Bill, which was unusual for a Government party, but this happened because of the Fine Gael Bill at the time. Our Bill provided for a presumption that force used against a trespasser would be reasonable unless the trespasser could prove otherwise and that an occupier would be exempt [623]from civil liability for any harm caused to a trespasser. It similarly removed the obligation to retreat. Generally, the objectives of the Bill are contained in this legislation. Fine Gael introduced the Criminal Law (Home Defence) Bill in 2009, which was almost identical to the 2006 Bill. It differed by providing for reduced immunity for occupiers who overreact in order that unreasonable force would still generate civil liability. The Bill was defeated on Second Stage.

Under this legislation, “curtilage” refers to the immediate area surrounding a house or adjacent to a dwelling and is used in conjunction with the dwelling. Where people have extensive gardens around their houses, the definition of “curtilage” may have to be reinterpreted in the future. It needs to be clearly defined because people have vast gardens which are very much part of the house. Perhaps the Minister will refer to this issue when he replies. Where a householder considers that a person has entered a dwelling or his curtilage for the purpose of carrying out an offence, he or she may use force against the intruder in the following circumstances: to protect himself or herself or any other person from injury, including death or imprisonment; to protect his or her property or the property of another from theft or damage; to prevent a crime; or to assist in making a lawful arrest. These are plausible scenarios.

In deciding whether the householder is justified in using force, a two-pronged test comprising subjective and objective elements is provided for. The subjective test means that the householder must believe that the intruder entered for the purpose of committing a criminal offence. He or she must also believe that the force used was reasonable in the circumstances, as he or she sees them. In this respect, it does not matter whether the use of force can be justified or not if the person honestly believes that it was reasonable in the circumstances. With regard to the objective test, in deciding whether the person honestly believed that the force used was reasonable, a jury should consider the presence or absence of reasonable grounds for the belief and all other relevant circumstances. For example, if a householder claims that he or she honestly believed there was a need to stab someone to prevent a personal injury or damage to property, a jury would be directed to examine circumstances such as the behaviour of the intruder, whether he or she was carrying a weapon, the exact circumstances of the stabbing, what was said, where it took place, etc.

These are the principal ingredients of the Bill and it has generally been welcomed. The Irish Council for Civil Liberties, ICCL, sent us an interesting overview of the Bill and it is generally in favour of it. The council’s officials have asked for an amendment about which the Minister will be aware. Perhaps he will address their concerns in his reply. They have also made a good suggestion, that because of the extensive media coverage the Bill has attracted, the Director of Public Prosecutions or the office of the Minister should draw up simple guidance for members of the public when the Bill has completed its passage through the Oireachtas and has been enacted. Such clarity could reassure people of their legal rights in defending their homes without erroneously encouraging them to believe that the Legislature has granted them a licence to take more extreme action. I do not believe in using the term “licence to kill” because that is not the intention of this Bill. I hope there will be a great deal of public education when the Bill is enacted to clarify what people are entitled to do.

The Bill has also been welcomed by the Association of Garda Sergeants and Inspectors because it gives clarity to the entitlement of the homeowner to defend his home against uninvited intruders. The vice-president said, “The Bill has shifted the balance of rights back to the homeowner where it should always have been”. He also described as “ridiculous” suggestions that the Bill equates to a licence to kill and contended that home owners will continue to act in a sensible and peaceful way, with which I totally agree. Irish Rural Link made a presentation to the Oireachtas Joint Committee on Justice, Equality, Defence and Women’s Rights during my tenure as a member of the committee and its representatives were clear about their support for the legislation.

[624]Apart from the questions posed by the ICCL, this Bill has been universally accepted. Yesterday evening I mentioned that I took part in a debate on Radio Kerry some years ago with Deputy Ferris when Fine Gael proposed its Bill. He was very much opposed to it then but listening to him last night, I do not know now. I welcome the fact that he seems to be supportive of it now. There is unanimity on the Bill within this House as far as I can see.

There is a bigger issue with regard to the security of homes. We must all take more responsibility for security in our homes. We should not encourage people in any way to invade our homes or trespass on our property through our own negligence. People should be very conscious of closing windows when they leave and ensuring doors are locked. Some people do not do this and it is amazing the number of people, especially in the countryside, who leave doors unlocked.

People should have a gate leading onto their property which should be secured at all times. Perhaps they should also have signs to the effect that trespassers or uninvited guests are not welcome. We do not want to create a siege mentality but people can take certain precautions and should be vigilant at all times when it comes to their buildings, houses and where they live. Also, where possible, the use of cameras and an alarm system can be a deterrent. Not everyone can afford a camera or alarm system but generally speaking they come cheap enough and if people can afford it, they should install one. When a potential trespasser or burglar sees that a house is fitted with an alarm system, straight away it is a deterrent for them. Alarm systems should be encouraged as much as possible.

I welcome the Bill. Fine Gael made two serious efforts to introduce a similar Bill. This was heavily criticised at the time, especially by Vincent Browne. He had a right go at Fine Gael over the first Bill in 2006 and I wonder what he is saying about this Bill now. Last night, I complimented the Minister on bringing forward the Bill and I recognise that he has brought forward a raft of legislation. He has been in the House more often than any other Minister and has brought forward some very good reforming legislation during his term of office.

Deputy Frank Fahey:I wish to share my time with Deputy Sargent with ten minutes each. On the basis of the principle that one’s home is one’s castle, the Bill is especially welcome. The reason the new Criminal Law (Defence and the Dwelling) Bill 2010 has been introduced is to tip the balance in favour of law abiding home dwellers. In clarifying the law in this area, the Bill sets out to state clearly that a person can use all reasonable force in defending his or her home. It provides that home dwellers do not have to retreat in the face of intruders. In particular, it puts an end to the bizarre situation and unjust practice that went on whereby burglars can sue for damages if they are injured while carrying out a robbery. That was a ridiculous situation and it has been put right in this legislation.

I join other speakers in complimenting the Minister, Deputy Dermot Ahern, on this reforming legislation. As Deputy Jimmy Deenihan stated, he has been responsible for several tranches of reforming legislation which tilt the balance against the criminal and it is high time this was done. The Criminal Justice (Amendment) Act 2009, the Criminal Justice (Surveillance) Act 2009 and the Criminal Justice (Miscellaneous Provisions) Bill 2009 are three examples of new legislation to tackle gangland crime and criminals roaming at will, breaking into people’s houses and so on, and this Bill will be of significance in that respect.

Mention has been made of Pádraig Nally. That case was a cause of concern to people throughout the country. The Bill will clearly state that people attacked in their homes and people who are robbed and intimidated now have an additional protection, that is, the ability to protect themselves. My one concern relates to the question of the curtilage of a dwelling house and why it is not more clearly defined. This issue has been raised and it is essential that [625]the curtilage of a dwelling house should include the area within the boundary walls of the house. I realise this issue has been examined by the Minister and the Attorney General. I urge the inclusion of an amendment in respect of the curtilage of a house such that the boundary walls of the house or the site on which the house is located, whether in an urban or rural area, should be included in the curtilage.

The question of mandatory sentencing is being examined. The Attorney General has asked the Law Reform Commission to examine the matter, which is worthwhile. I believe there should be mandatory sentencing for people who commit burglaries or break into people’s homes. While the legislation that exists has been strengthened, I welcome the fact that legislation introduced in recent times recognises that people have the right to feel safe in their own homes.

This legislation is sending a strong message to intruders by imposing substantial sentences. For example, burglaries in people’s private homes carry a maximum sentence of 14 years and aggravated burglaries carry a sentence of life imprisonment. It is essential that there should be strong deterrents, especially for burglary and aggravated burglary of people’s homes and private dwelling houses. I would go so far as to say if it is necessary to have mandatory sentencing in that situation, then that should be the case.

I point to the situation which exists with regard to the level of crime carried out while people are on bail. I have made a suggestion within our party structures to the Minister for Justice and Law Reform with regard to serial burglars who have been in prison before and who are on bail as a result of continuing gangland activity and breaking into houses, creating burglaries and so on. It is time for electronic tagging of those serial criminals while they are on bail awaiting a further trial. The Garda will have the statistics on this but it is clear that many burglaries are committed by the same people again and again. The experience in Galway is that the same people and gangs continually cause trouble in terms of burglaries, etc.

I compliment the Garda in Galway on the significant level of detection rates, which act as a great deterrent for criminals. I take this opportunity to welcome the initiatives taken in Galway. For example, there are two regional response units in the western region, comprising two elite units of highly skilled gardaí, which provide invaluable support to policing in the community. The two 12-member units based in Salthill, Galway and Claremorris, County Mayo, perform regular duties such as patrolling streets and county towns in Galway but can switch to armed mode in a critical situation. This is the type of policing support that ordinary gardaí need to deal with criminal gangs which roam the country continually looking for the opportunity to carry out crime.

I refer to the front line policing evident in Galway now. It is making our neighbourhoods safe. We have excellent success in the detection and apprehension of criminals but no matter what one does, the Garda Síochána cannot hope to stop all crime. Crime prevention and community support initiatives throughout the country are vitally important. Neighbourhood watch is a crime prevention programme that enlists the active co-operation of the community in neighbourhoods by observing suspicious activities and reporting them to the Garda Síochána. We must persuade more people to get involved in neighbourhood watch and encourage people to be very vigilant, especially in areas where there is a tradition of criminal activity. In some areas east of Galway city, such as Carnmore, Claregalway and Turloughmore, there are spates of burglaries from time to time.

The Garda Síochána needs support from local communities and for them to be vigilant about activities and suspicions. It is sad that in the period when I was trying to bring about more investment, assistance and support to the Traveller community as Minister of State with responsibility for justice, equality and law reform, the number of convictions of members of the [626]Traveller community and the number of people from the Traveller community in jail because of burglary and larceny was abnormally high. Along with various Departments, agencies and representative organisations of the Traveller community, we must try to stop this kind of activity by a small minority of the Traveller community. They bring their community into disrepute and cause trouble for the vast majority of those in the Traveller community across this country, who are law-abiding citizens and live a good life. I urge people from all walks of life to try to address this issue to prevent this scourge among that sector of the community. I am not singling them out but the statistics are clear. We must try to educate people from the Traveller community and prevent that activity, which is bringing them into disrepute.

There should be no tolerance of people breaking into the private houses of others. I urge the Minister for Justice and Law Reform to put in place whatever resources and legislative backup is required to ensure a person’s home is his castle.

Deputy Trevor Sargent:Ba mhaith liom buíochas a ghabháil leis an Teachta Fahey as ucht a chuid ama a roinnt liom. Cuirim fáilte roimh an Bhille seo, the Criminal Law (Defence and the Dwelling) Bill. I welcome that it provides a definition of the dwelling and when justifiable force may be used against a person entering for criminal purposes. It also states clearly that the occupier has no obligation to retreat from the dwelling. In addition, it bars the taking of civil actions against occupiers who protect dwellings and inflict injuries incidental to that. The Bill is not a panacea for the problems and fears that are day-to-day preoccupations for people in our country but it clarifies the law on self-defence. To that extent, it can serve to reduce the trauma for someone who has been burgled. The injustice we saw in the past, where an occupier is sued by a burglar, is hopefully at an end. I hope the Bill achieves that objective. Time will tell.

The Bill is also a response to the precedent set down by the courts. We must have due regard to that, whether the case of Tony Martin, where a wounded burglar attempted to sue the occupier, or the Pádraig Nally case, where Mr. Nally was found not guilty on retrial, notwithstanding the trauma and loss of life that was part of the case. Hopefully, we can learn from the decisions of the court and take on board the accumulated wisdom from having examined the cases in detail over a protracted period of time, notwithstanding the trauma on all sides over the course of the trials.

One of my main reasons for speaking on this Bill is that many of us have personal experience of the circumstances referred to and considered by this legislation. In the early 1990s, a good friend of mine, whom I miss very much, Reverend Stephen Hilliard, rector of Rathdrum, County Wicklow, was killed by a burglar. I am not sure this legislation would have been a solution and that is why I say it is not a panacea. On hearing a noise downstairs, Reverend Hilliard went to investigate and as a result he was confronted by the burglar holding a kitchen knife from the premises. He was stabbed and bled to death. Fear uasal a bhí ann. Bhí sé mar shagart de chuid Eaglais na hÉireann. Bhí sé de nós agam buaileadh leis in Ardteampall Chríost. Is uafásach an tragóid é dá bhean chéile agus dá mhuintir gur cailleadh é mar sin. Ní leigheas é an Bille seo ar an eachtra nó tragóid sin — in ainneoin pé reachtaíocht atá in áit, ní féidir duine mar sin a thabhairt thar n-ais. Ní bheidh a leithéid arís ann. Duine séimh uasal a bhí ann.

Many references have been made to people in rural Ireland. There are many rural dwellers in my constituency of Dublin North, some of whom are very much on the breadline and some of whom are not. In the farming section of Irish Examiner today, we must take account of the fact that there may be fewer burglaries not because there are fewer burglars, but because rural dwellers are on the breadline. The Vincentian Partnership for Social Justice has carried out research which shows that the weekly costs for rural households are between €69.91 and [627]€108.61 higher than urban households, mainly due to higher transport and food costs. In contrast, child care and social life are less expensive. I am not sure what criteria were used to measure this. It also points to the fact that rural dwellers are not as rich pickings as may have been thought by burglars in the past. Hopefully this will be a disincentive for those who make a living breaking the law.

The only way to reassure people that they will not be burgled is to advise them to adopt every precautionary principle that is possible. From talking to the Garda it appears that most burglaries are as a result of some level of carelessness, for example, a window left open or a door left ajar. This is too serious a matter on which to beat around the bush. It is essential that people take precautions not to put temptation in the way of intruders. That is not to ascribe liability to anyone who is burgled but burglars are looking for the easy option and if they see an opportunity they will take it. I accept that not everyone is able to afford a burglar alarm but it needs to be on the shopping list of choices people have. If one can afford an alarm, it is a good investment that brings reassurance and peace of mind and it is a signal to burglars that they are not going to have life made easy for them in any way.

Tá seanfhocal ann, “ar scáth a chéile a mhaireann na daoine”. Is ar scáth a chéile a mhaireann na daoine ó thaobh eachtraí mídhleathacha ar nós robálacha chomh maith. Ba cheart a rá le daoine gur fiú bheith ag caint leis na comharsan béal dorais agus bheith páirteach in Neighbourhood Watch agus i ngrúpaí ar nós, i mo cheantar féin, Balbriggan Awareness of Drugs. That organisation invites representatives of every housing estate to meet with the Garda to address issues relating to drug addiction, including legal drugs such as alcohol. Such groups help in particular to build community spirit and a sense of alertness that helps to thwart burglars. The Garda Síochána has a significant role to play, and has done much in terms of prevention to thwart burglars. Since the northern end of north County Dublin became part of the Dublin metropolitan policing area there has been a noticeable improvement in the number of gardaí on the beat. The increased Garda presence has helped communities to feel safer. People are aware that the Garda are available to help when needed.

I hope all of those points will be taken on board. Equally, I hope the criticism by the Law Reform Commission that is referred to in the research document from the Oireachtas Library and Research Service can be taken on board. I have spoken to the Minister about the matter. His view is that the criticisms have been taken on board. Perhaps he will refer to that when he sums up and put at rest the minds of those in the Law Reform Commission who may think otherwise.

Deputy Brian O’Shea:Tááthas orm seans a bheith agam labhairt ar an Bhille seo, Bille um an Dlí Coiriúil (Cosaint agus Teaghais) 2010. The Bill in its provisions contains an acknowledgement that the home should be a place of safety and the application of self-defence in the context of an attack in the home may be different from a situation which obtains in other circumstances. The Bill is a short one which purports to clarify the law in the event of a householder being confronted in the home by a person intent on committing a criminal act.

The reason the Bill is before the House is due to some terrible incidents which have taken place, mainly in rural areas. There was also an incident in the heart of Waterford city which caused a great deal of concern locally. The most important question as far as I am concerned is whether the legislation will prove to be a deterrent; in other words, will the people who carry out break-ins think twice before they embark on the terrible violence, sometimes fatal, that [628]can be delivered in the course of burglaries? I have some concerns in that regard and also in terms of householders. How many elderly or vulnerable people who live in isolated areas, for example, women living alone, would be able to defend themselves in the event of being attacked in their homes? I ask the Minister to address that issue because while it sounds fine in theory to talk about self defence it is questionable whether such people would have the wherewithal to defend themselves against aggressive or armed intruders. That issue needs to be addressed.

Individuals were apprehended recently in my constituency in connection with burglaries and break-ins. They had come to the area from a long way off. Their activity was of an organised nature. On the one hand we have random break-ins but we also have organised break-ins. In urban areas people who are fuelling a drug habit break in to houses in a random fashion wherever they find a weakness.

Deputy Sargent referred to windows being left open. He also referred to the Neighbourhood Watch scheme. We must encourage communities to safeguard vulnerable people in their area in so far as that is possible. Many of the organised burglaries can be intelligence-led. People circulate in an area with the intention of identifying vulnerable targets for a break-in. The Garda does much good work in that regard. It is a significant issue. I am aware of the problem in my county where there are isolated areas. The Garda has done well in terms of apprehending people but it is difficult to undertake the type of dispersed surveillance that is required.

The issue arises of whether the legislation will improve the situation to any great extent. As a community we must do something substantial. As Deputies we have all encountered people who live in great fear, not alone in rural areas but in urban areas as well. We are familiar with the cliché that a person’s home is his castle. When there are reports in the media of break-ins and violence anywhere in the country it raises the fear level in communities. When I was growing up in Waterford city I remember that people left their keys in the door so that if family members or friends came to visit they could open the door and come in.

People do not do that any longer. The country is not as pleasant a place to live in as it was when I grew up; things have changed and we are in a new era. This Bill seeks to address in a substantial way issues faced by people whose homes are violated, broken into and who are confronted by an intruder. I am not convinced, however, that it will improve the situation.

The interpretation section deals with the definition of the home, with dwelling defined widely to include vehicles or vessels constructed or adapted for use as a vehicle and seems to be comprehensive. The provisions of the Bill would stretch as far as someone living in a tent or a caravan who is attacked. Curtilage is also taken into consideration, along with the dwelling.

We then come to the attempt to define justifiable force, an issue where clarity is needed, particularly in regard to the wholly subjective test as to occupier’s belief, which will potentially allow the infliction of deadly force on the basis of paranoia, fear or anxiety rather than objective concerns over physical threats to the individual rather than just to property. If someone is under attack he will be suffering anxiety and fear and the subjective assessment of the situation before using force is difficult. I ask that the concerns outlined in the Library and Research Service digest would be addressed by the Minister. There are issues about the DPP v. Barnes case, that outlined that a person cannot lawfully lose his life simply because he trespasses on the dwelling of another with intent to steal. In what way does this legislation change that position?

There are points in the Bill that need to be clarified. The Opposition would favour measures that will protect people in their homes while giving them peace of mind. Does, however, the [629]Bill change the current situation in any substantial way? I am not convinced it does. I will wait for the Minister’s reply to hear the thinking of the Government on these issues. The most important question is if the legislation improves the situation for people who suffer terribly and whom all sides of the House wish to protect. We all want to stop this sort of crime and the fear that it causes, in both rural and urban areas.

Should someone retreat when his house is invaded if he has that option? No one should be held to be obliged to retreat but the courts have pointed out that in many situations the householder would be advised to flee but would never be under a legal obligation to do so. Any legislation that improves the situation for those who are exposed to break ins would be supported by all of us but we must ask if the legislation is a deterrent and the extent to which it will assist people to defend themselves. Many of the people we are thinking of could not defend themselves against able-bodied intruders.

Deputy Dan Neville:I welcome the introduction of this Bill. Fine Gael has been asking for a Bill for four years that would address the situation whereby people were unsure how to defend themselves, their families and their property. Myths were growing up that the burglar was all powerful once he came in and no defence was possible without a high risk to the property owner. It was perhaps a myth but the situation arose where those who defended themselves found themselves in difficulty with the law.

This Bill provides protection for people and gives them the opportunity to defend themselves, their families and their property in the event of burglary or tiger kidnapping. These are frightening situations for those working in banks and they should be allowed to defend themselves in such situations. The Bill must address this because people should feel safe in their homes. They feel at present that they must withdraw if there is an intruder and it is important that we send a message to those who would intrude that the freedom to go about their dastardly deeds will be confronted.

I have personal experience in my community of the robbery and beating up of old people. It is sad to see an elderly person living alone who has been robbed. Such people are terrified and injured, go to hospital and, despite being physically able, cannot return home out of fear. They are elderly and not as physically active as they used to be but they could survive on their own with home help. However, they are too afraid of returning home. After living their lives working hard to rear families that have now gone and looking forward to enjoying their old age, having this type of burglary visited upon them is one of the most dastardly crimes possible.

I will cite some of the statistics on burglary and other offences. In recent years, crime levels have increased. According to the Central Statistics Office there were 23,603 recorded burglaries in 2007. By 2009, that figured had increased to 26,877. Not including aggravated burglaries as described in the CSO report, there were 23,052 and 26,072 burglaries in 2007 and 2009, respectively. This increase of approximately 3,000 is similar to that of the previous category. In 2007, there were 2,171 robbery, extortion and hijacking offences. In 2009, there were 2,487 such offences. In 2007, there were 814 cases of robbery of an establishment or institution. In 2009, this figure increased to 1,030. According to the CSO, the number of robberies and burglaries rose by one third in the second quarter of 2010. The number of robbery, extortion and hijacking offences increased by almost 34% from 575 to 770. There were 1,659 recorded offences of robbery against individuals during that period, representing a rise of more than 37% compared with the same quarter in 2009. The quarterly figures for robbery, extortion and hijacking offences increased by more than 24% from 676 in the first quarter of 2009 to 840 in the first quarter of 2010.

[630]The Government and the Minister are losing the fight to reduce levels of crime, including robberies and violence. The Government’s approach to the issues of criminal activity and safety must be re-examined urgently. While the Bill is a step in that respect, crime levels are rising and people are afraid. Given the advent of drugs and the considerable increase in alcohol consumption, many burglaries are committed by people who are intoxicated with drugs or alcohol. They are not in full control of their faculties and cannot judge a situation, regardless of the evil they are doing.

While welcoming the Bill, people must be mindful of their safety and that of their families when confronting someone. Even while a person is panicking, stressed and terrified, he or she must make a judgment as to how much violence to use in the defence of his or her property, family and self. We hope that research in this regard will be published to advise people on how to respond to a situation with which they are presented. The Bill, when enacted, could be complemented through television and radio advertising that would explain the extent of the legislation, its implications after being passed and the dangers of responding to a potentially risky situation. Someone who is highly intoxicated and looking for money for drugs with a loaded gun is a dangerous cocktail, a fact of which we must be conscious.

The Bill addresses the issue of an intruder entering a property where a person feels the need to protect himself or herself and the matter of the property itself being stolen. The Minister outlined that section 2 provides a mixture of objective and subjective tests in determining whether the use of force is justified by an individual in his or her home who is confronted by an intruder. I will refer to this matter later. Section 2(1) states:

[I]t shall not be an offence for a person who is in his or her dwelling, or for a person who is a lawful occupant in a dwelling, to use force against another person or the property of another person where—

(a) he or she believes the other person has entered or is entering the dwelling as a trespasser for the purpose of committing a criminal act,

This provision is based on the assumption that a person must believe someone has entered that person’s property as a trespasser for the purpose of committing a criminal act. Before engaging in violence, one must be satisfied in one’s own mind. While this provision qualifies the situation of responding to intruders, one can quickly read whether someone entering a dwelling believes the house is empty, in that the person tries to leave quickly upon seeing it is not empty for fear of being caught. One must judge whether the danger has moved on and the criminal act will not occur. Seriously injuring a person in such a situation could be questionable, as one must have a good reason to believe the person is violent. While this is so in 95% of cases, we all know of situations of young people who burgled houses they believed were empty, but got out as quickly as they could when they heard noises upstairs. In other words, one must believe that someone has entered one’s home to commit a criminal act and the force one uses must be reasonable.

Fine Gael believes people must feel safe in their homes and use reasonable force to protect their property. We have tabled two Private Members’ Bills on this matter in the past four years, including one sponsored by Deputies Ring and Charles Flanagan. I often regret that the Government will accept Private Members’ Bills only occasionally, when there is a level of reasonableness and agreement and an understanding that everyone is on the same side. I do not understand the political reasons fully, but the fear is that the Opposition will claim credibility on [631]the basis of non-Government legislation. Nobody has a 100% call on what is good for society. If Oppositions are reasonable in putting forward issues, it is very regrettable that, for political reasons, these are turned down with perhaps a promise that something will be done. When the matter is put to bed, however, this action never happens.

Deputy O’Shea mentioned that nobody locked their door in rural Ireland. I remember that well and indeed up to ten years ago I did not lock my car. However, it suddenly dawned on me that things were changing in this society. We find now that people are frightened, especially elderly people, and we are very conscious of this when we go canvassing and meeting people at their doors. When a certain time in the evening comes, one does not call to doors for fear of frightening people. One suspends one’s canvassing for that very reason.

The Bill will let people know where they stand when their privacy is invaded. We must be concerned and must temper our defence when confronted with weapons, be they guns, crowbars or any other item that could inflict injury. We must have a balanced approach to defending ourselves and be careful that life is not put in danger. Deputy Shatter stated that according to the Bill not alone is the house considered a property, but so is the curtilage, namely, the back and front gardens. Deputy Shatter said one does not shoot a guy because he is out in the back garden stealing one’s lawnmower or shovel. There must be balance in the approach to defending property so that life is not recklessly put in danger in such circumstances.

I welcome the Bill. It clarifies a situation which had become very difficult, especially since the Nally case in the west which clearly divided public opinion on the issue. There are people who will say there are dangerous elements in this Bill, that it may allow a certain level of recklessness. However, a level of recklessness currently exists regarding the safety of people in their homes concerning which I gave statistics. That recklessness must be confronted. This is one measure of confronting it but the Government must also consider other measures to ensure that the statistics, as I outlined them, do not continue to increase as more and more people are put at risk. People must be advised on how to protect themselves, especially elderly people who suffer spates of attacks. At one stage there was such a spate of attacks in the west that it was like an epidemic, which was seriously upsetting.

We welcome the Bill and hope it will have a quick passage through the Dáil and Seanad.

Minister for Justice and Law Reform (Deputy Dermot Ahern):I thank Deputies on both sides of the House for the positive comments they made on this Bill. I hope, as Deputy Shatter stated, we can proceed to its passing. It is a relatively short Bill and does not warrant much amendment. Deputy Shatter criticised the Government for not introducing it before but, as I noted, the Law Reform Commission was making an examination of the issue of defences in general and we felt we should wait until that had been considered.

Deputy Shatter referred to previous Bills tabled by Fine Gael, including the Criminal Law Home Defence Bill 2006, sponsored by Deputy Jim O’Keeffe. Although the principle of that Bill was laudable, the Criminal Law (Home Defence) Bill 2009, sponsored by Deputies Charlie Flanagan and Michael Ring, was a copy of the 2006 Bill which was rejected by the House on the basis of advice given to Government in regard to its sustainability. It contained some flaws. In the 2009 Fine Gael Private Members’ Bill there was a presumption that force used by an occupier against a trespasser was reasonable. The Attorney General stated this was too broad and too blunt. For example, it would have presumed it was reasonable to use force against a child who innocently wandered into a house. The issue of a child wandering into an orchard to take an apple was raised. Ultimately this Bill is based on common sense and what is reasonable. If a child wanders into an orchard to steal an apple, any response using physical or lethal force [632]would be totally disproportionate and would fall outside the remit of this Bill which would provide no protection to anybody using force in those circumstances.

The Fine Gael Private Members’ Bill did not deal with a situation in the Bill where, in the event of a child innocently wandering into a house, there was a presumption that force could be used. It also failed to place any restriction on the circumstances in which such force might be used and did not deal with the issue of curtilage. That Bill was silent in that respect. It only afforded protection to the occupier while within the strict confines of the dwelling. The current Bill takes a common sense approach that allows the occupier to take reasonable defensive action within the curtilage of the dwelling. The 2009 Private Members’ Bill went too far in allowing an occupier to intentionally or recklessly engage in conduct which creates a substantial risk of death or serious harm to another. Under the current Bill, although the actions of an occupier may result in harm to another, the occupier’s motivation must be that of protecting against harm to persons or damage to property. The actions must be reasonable. Those are reasons the previous Bills were rejected by Government as being too blunt and too broad in their construction.

On this Bill we took the Attorney General’s advice regarding its constitutionality. The framers of the Constitution clearly recognised the central importance of the dwelling in the life of every citizen and provided for that in the Constitution. That has been recognised in laws passed since the Constitution was put in place and this Bill follows that constitutional provision. It is necessary to say it does not give a licence to kill, or a charter for any person to have a go by vigilantism, or whatever, as certain people outside the House have suggested. On the other hand, Deputy Rabbitte called it a slight measure. It is not a slight measure but a balanced Bill that recognises the right of a lawful occupier to use reasonable force against anybody that he or she believes is trespassing on his or her property with criminal intent.

A number of Deputies raised the issue of curtilage which was looked at very closely by the Attorney General. The scope of the previous Private Members’ Bill was only in regard to the actual dwelling but there are circumstances when the criminal act may start in the dwelling and then move to a yard or driveway, or wherever. That was a major fault in that Bill. However, I can understand that the definition of curtilage is somewhat difficult. The framing of this is to ensure that while it is possibly wider than that, the area involved should be used in conjunction with, and for the enjoyment of the dwelling. Obviously, it would be up to a court or a jury to decide on that.

The Attorney General has examined the question of constitutional protection for the dwelling carefully and advised on the particular course set out in the Bill for definition of curtilage, by extending the protection contained in section 2 for householders’ actions only as far as the curtilage. The Bill recognises the limits of the doctrine of constitutional inviolability of the dwelling. It also draws on the case law to make it clear that a householder cannot be expected to retreat from the home.

A number of Deputies, including Deputy Sargent, raised this in their contributions. Indeed Deputy Sargent raised this with me, personally. They referred to the Law Reform Commission’s report on defences in the criminal law, part of which this legislation is based on. They had recommended an approach that would replace the reasonableness test by criteria already embedded in that concept — threshold, immanence, necessity and proportionality. The Law Reform Commission was recommending an approach to the general law on defences, as I said in my general contribution, and its recommendations anticipated codification of the criminal law. To have adopted the approach recommended by the Law Reform Commission would have [633]required changing the law on defences, generally. The concept of reasonableness is long known to Irish law, and one that is amenable both to judicial direction and indeed to a common sense understanding, as I said before. This Bill is based on common sense and on what is reasonable in the particular circumstances pertaining to an instance.

The whole issue of reasonableness is a concept that juries have applied without too much difficulty over the years. Crucially, however, it implicitly embodies the concepts enumerated by the Law Reform Commission while rightly allowing for a rounded consideration of all the circumstances in every case. However, the Law Reform Commission report generally was based on a codification of the law on defences and we are not at that stage in that respect. Given that this Bill was necessary, I believe it was the view of most Members of the House that we should deal with this particular aspect on its merits. It was felt that we should pick this piece out of the Law Reform Commission’s report.

I gave an undertaking that once the Law Reform Commission’s report was published, we would publish our own Bill within a relatively short space of time, which we did.

Deputy Shatter raised the issue of the European Convention on Human Rights. The Bill has to be construed both in the light of the inviolability of dwelling provisions, Article 40(5) of the Constitution, but also in the light of the guarantee as regards the protection of human life in Articles 40(3) and also in the European Convention on Human Rights. The Bill was drafted in consultation with the Attorney General, who would always have regard for the Constitution and the European Convention on Human Rights.

I reiterate that the Bill does not seek to authorise the use of force, lethal or otherwise, which is unreasonable or unnecessary. A number of Deputies raised the question as to whether I had considered the views of the Human Rights Commission on this. My officials had initial discussions with the commission, but as yet I do not believe we have received submissions from it. I expect it to publish its observations on the Bill shortly.

A number of Deputies raised the issue of the various types of assistance on offer such as “community alert” and “neighbourhood watch”. My Department has provided substantial support over the years for the community alert programme. There are 1,351 such schemes in operation throughout the country. Some Deputies referred to the Garda Síochána’s older people’s strategy, which I and the Minister of State, Deputy Áine Brady launched recently, along with the Garda Commissioner. It sets out current and future initiatives to be taken by the Garda Síochána, working with members of the general public to assist older people who consider themselves under threat or victims of crime. I compliment the Garda Síochána on the initiative it has taken in that respect.

A number of Deputies referred to community policing. The latest available figures show that 1,038 gardaí were specifically assigned to community policing as at the end of August 2010. Obviously, every garda is expected to have an awareness of the community he or she is living in, but this is a specific initiative involving dedicated community police, men and women. Since the end of 2007 there has been a 70% increase in the number of community gardaí, which again shows the Garda Síochána is very much aware of the necessity. The Garda Commissioner and I, some time back, relaunched the community policing project in Ballymun. I know from my talks with members of the Garda management that they are great supporters of community policing. I commend them because, while we need to have the specialised Garda units, equally the garda on the beat who is known to the people at community level and vice versa is vitally important.

[634]A number of Deputies raised the seniors alert scheme which replaced the scheme of community support for older people. Deputy Carey raised the matter of grant assistance. This scheme, which is in place, provides grant assistance towards the purchase and installation of equipment. When I was Minister for Social and Family Affairs I found this an excellent scheme. It was passed on to the Department of Community, Equality and Gaeltacht Affairs, which is now the lead Department in that respect.

Another initiative is the neighbourhood watch strategy for 2007-11. The Garda authorities inform me that there are currently 2,340 neighbourhood watch schemes in operation around the country. Obviously, they work very closely with An Garda Síochána. Deputies Flynn, Chris Andrews and Ferris mentioned the effective deployment of the Garda Síochána, as did Deputy Rabbitte in respect of Fettercairn. Ultimately, the allocation of Garda resources is a matter for the Garda Commissioner to determine where gardaí are to be based. That is continually being monitored and reviewed and optimum use is made of Garda resources. The resources of divisional Garda units throughout the country are augmented by national units such as the national bureau of criminal investigation, the special detective unit, the Garda national drugs unit, the organised crime unit and other elements of the Garda Síochána’s support services. As of 31 August 2010 the latest available figures show that there were 14,615 gardaí, with a further nine in training. There is a total of 1,038 community gardaí, 112 juvenile liaison officers, 1,035 members of the traffic corps and 629 Garda reservists. That is an all-time high level for gardaí in the history of the State.

Deputies Creighton, Chris Andrews and others raised the issue of tougher sentences for crimes. We have made this point and that is one reason there are substantial numbers in our prisons today. Over the past 20 years or so the Oireachtas has increased sentences fairly dramatically. Every time there is major publicity about a crime, with sections of the media crying for tougher sentences, obviously the political process responds. The knock-on effect, however, is that the more substantial the sentences being laid down in legislation, the longer the sentences handed down by the Judiciary.

The average life sentence now is approximately 17 years, whereas not so long ago — perhaps 15 or 20 years ago — it was only seven and a half years. I have had discussions previously with the Attorney General on the issue of mandatory sentencing, particularly for burglary and aggravated burglary involving older people. The Attorney General has asked the Law Reform Commission, under the legislation, to consider this issue. I remind Deputies that in the Criminal Justice Act 2007 we provided the courts with the power to make monitoring orders on persons convicted of aggravated burglary, for which, as I already said, there is a maximum sentence of life imprisonment. The courts may also make protection of persons orders prohibiting offenders from engaging in any activity or behaviour that would cause the victim of the offence fear, distress, alarm or intimidation. The same Act provides for mandatory minimum sentences for repeat offenders.

Deputy Kenneally expressed concern about section 6. I assure the Deputy that the intention of this section is to provide a defence for the householder who may have used force against someone entering the dwelling to commit a crime, and not for the intruder. The fact that the intruder may fall into one of the categories set out in the section does not mean it can be concluded that the act perpetrated on entering the dwelling was not criminal.

I think the Deputies for their general support for this Bill. It clarifies the existing law, which was more or less laid down in DPP v. Barnes. It also extends the existing provisions, particularly with regard to the issue of curtilage, which it clarifies. In addition, it clarifies that the house[635]holder is not subject to the possibility of a claim for damages by an intruder in the event of the intruder’s being injured.

This is a balanced Bill. There have been some suggestions, mainly outside the House, that it is a charter for what may be termed “have-a-go vigilantes”, but this is not the case. Rather than merely giving the Judiciary the ability to deal with particular cases, it will send a strong signal to the people who perpetrate these crimes that they are facing a hazard not just in terms of their ultimate culpability once they are found guilty but also in the case that they enter someone’s home.

The Bill follows on from the constitutional provisions regarding property. Deputy Rabbitte mentioned the possibility of limiting the provisions to certain properties, but I do not accept that. It is important that our legislation reflects the special position of the dwelling in our Constitution and the inviolability of the dwelling house for every citizen. The dwelling and the people therein must have special protection from the Oireachtas and this Bill achieves that.